There has been much ado recently about a Nascar incident in my neck of the woods (Ontario County, New York State) in which Tony Stewart struck and killed Kevin Ward Jr. (See video of the incident above). An Ontario County Grand Jury recently declined to indict Steward. The Grand Jury determined that there was simply no probable cause to believe that Stewart intentionally or even recklessly killed Ward. Ontario County District Attorney Tantillo also announced for the first time that Kevin Ward had marijuana in his blood at a level that would have “impaired judgment”.
So Stewart has been cleared of criminal wrongdoing. But can Ward’s family nevertheless sue him for damages for wrongful death? Such a lawsuit might be in the works. Ward’s mother was recently quoted as saying that Stewart “intentionally tried to intimidate Kevin by accelerating and sliding his car towards him” and that she was considering “other remedies” since no criminal charges will be filed.
Remember the OJ trial? The jury acquitted him of murder (“if it doesn’t fit, you must acquit”) but then the family of Nicole Simpson sued OJ for wrongful death and got a huge verdict. Can the same thing happen here?
Unlikely. Such a lawsuit would almost certainly fail. First, Nascar drivers “assume the risk” of their dangerous sport. Beyond that, Ward went even further and assumed the risk of exiting his disabled car and stepping dangerously close to Stewart’s still moving vehicle in an attempt to confront his opponent, presumably because he thought Sewart had deliberately bumped and sidelined him.
Ward’s family will have the burden of proof at trial. But the video of the incident, which has been played countless times on YOUTUBE, contains no proof that that Stewart deliberately or even negligently struck Ward. Stewart did not change course as he passed Ward. The fishtailing of his race car appears to happen after the side of Stewart’s car swiped Ward.
It would be a different matter if the video showed Ward swerving from his path of travel toward Ward. Instead, the video appears to show Ward stepping dangerously close to Stewart’s path of travel after having angrily run from his disabled car into the fray of circling vehicles.
It is of no matter that the video might be interpreted to show Stewart deliberately bumping and sidelining Ward’s vehicle. Even if Stewart “played dirty” by engaging in a form of “demolition derby” — which is not at all clear from the video — how could Stewart ever have predicted that this would cause Ward to exit his car and step into his path of travel?
I wish Ward’s family peace. I am sure Stewart is struggling with what happened, too. There are no winners here, and a civil lawsuit for wrongful death is unlikely to bring any “justice” to either side.
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Michael G. Bersani, Esq.
mbk-law.com Central NY Wrongful Death Lawyers
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